In line with the Law No. 6563 on the Regulation of Electronic Commerce, it is obligatory to obtain consent in order to send commercial electronic messages to individuals. With the entry into force of the Law and the relevant regulation, service providers will no longer be able to send commercial electronic messages without the prior consent of the recipients in order to promote and market their goods and services directly or indirectly.
This consent can be obtained physically with a wet signature or electronically via email or SMS. In accordance with the Regulation, the consent must be made in the form of an explicit declaration of will. The recipient's silence does not mean that this consent has been given. The message sent by the service provider to obtain consent should not contain any promotional and marketing content.
The consent text must include the recipient's affirmative declaration of will, name and surname and electronic contact address that the recipient accepts the sending of commercial electronic messages. The signature of the consenting person must be present in obtaining the consent.
Consent in electronic media can be given verbally, with certain words or by checking a box on the internet system. However, in this last case, it should be ensured that the box is not pre-marked and that the mark is placed by the consenting party.
The service provider is responsible for proving that approval has been obtained. In Article 13 of the Regulation, it is stated that the service provider and/or intermediary service provider must keep the records they have received regarding the approval for 1 year from the date of expiry of the validity of the approval and these records must be provided to the Ministry upon request.
In terms of proof, if the service provider has obtained the consent in a physical environment, the original document with the signature of the consenting party will fulfill the function of proof. If the consent is received electronically, for example, if the consent is received by e-mail, the IP log records may be sufficient for proof. However, in consents received by e-mail, the recipient must be notified directly by e-mail that he/she has given his/her consent. In the so-called ‘double-opt-in’ method of consent by e-mail, the recipient notifies the service provider of his e-mail address electronically, and then the service provider sends an e-mail to this address containing an activation link in order to confirm that the person using the address is the same as the person who provided the address to the service provider. If the recipient clicks on the link in this e-mail, he/she is deemed to have consented to receive commercial messages.
For consents received via SMS, the service provider must keep the consent message sent by the recipient. In the case of consents received through voice communication, the audio recording of the consent should be stored by informing the recipient that the ‘conversation will be recorded' at the start of the voice call and by verifying the personal information of the recipient.
